Action brought on 28 August 2008 - Hidalgo v OHIM - Bodegas Hidalgo - La Gitana (HIDALGO)

(Case T-365/08)

Language in which the application was lodged: Spanish

Parties

Applicant: Emilio Hidalgo, SA (Jerez de la Frontera, Spain) (represented by: Esteve Sanz, lawyer)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)

Other party to the proceedings before the Board of Appeal of OHIM: Bodegas Hidalgo - La Gitana, SA (Sanlucar de Barrameda,Cadiz, Spain)

Form of order sought

Annul the decision of the Fourth Board of Appeal of OHIM, of 11 June 2008, in Case R 1329/2007-4, notified to the applicant on 18 June 2008;

Order the defendant and, where appropriate, the intervening party, to pay the costs of the proceedings before the Court of First Instance and those of the proceedings before the Board of Appeal.

Pleas in law and main arguments

Applicant for a Community trade mark: Emilio Hidalgo, SA.

Community trade mark concerned: Verbal mark 'HIDALGO' (Application No 4.032.108) for goods in Class 33 'alcoholic beverages (except beers)'.

Proprietor of the mark or sign cited in the opposition proceedings: Bodegas Hidalgo - La Gitana, SA.

Mark or sign cited in opposition: Spanish verbal mark 'HIDALGO' for goods in Class 33 ('Wines in general and especially those covered by the DDOO Jerez and Manzanilla').

Decision of the Opposition Division: Opposition upheld and application for registration rejected.

Decision of the Board of Appeal: Dismissal of the appeal.

Pleas in law: Infringement of Articles 73 and 61(2) of Regulation (EC) No 40/94 on the Community trade mark (CTM) and the applicant's rights of the defence, by basing the contested decision on a document on which the applicant was unable to comment.

The applicant also alleges breach of:

Article 8(1)(a) of the CTM, in so far as the contested decision considers that wines are identical to other alcoholic beverages in Class 33, other than wines.

Articles 4(1) and 5(1) of Directive EC/89/104 to approximate the laws of the Member States relating to trade marks and infringement of the principle of coexistence and equivalence between national and Community marks.

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